Court dismisses conspiracy charges due to lack of overt acts and defective statutory particulars.

[*527] 1984 March 27

(KALLIS, AC .D.J.)

Modestos Pitsillos,

v.

1 . Petros Dikigoropoullos

2. Christoforos Antoniades,

Accused.

(Case No. 20392/83)

Conspiracy - Ingredients of the offence - Agreement – It may be proved by overt acts in pursuance of a combination

- Real purpose of combination to promote financial interests of those entering into it - No conspiracy.

Criminal procedure - Charge - Defective - Objection to - Stage at which may be made - If defect of a formal nature, the objection should be raised before plea, but if it goes to the root of the charge, the objection may be taken at any stage of the proceedings - “Public injury” contrary to section 373 of the Criminal Code, Cap. 154 - No provision in said section relating to such an offence - Relevant count quashed - Charging the accused with an offence contrary to section 373

(c) of the said code, whereas the particulars refer more or less to an offence under section 373(e) - Relevant count quashed for absence of particulars.

Criminal procedure - Criminal trial

- No prima facie case to answer - Principles applicable.

Prosecutor appeared in person.

A. Paschalides for the accused.

RULING

The ruling of the Court was delivered by:

KALLIS, AG .D J.:The prosecutor in this Case filed [*528] charge-sheet containing four counts against the accused, as follows:

“1. Public Injury, contrary to section 373 of the Criminal Code, Cap. 154.”

The particulars of this offence were that the “accused between 15.11 .83 and 25.11 .83, both dates inclusive, conspired to prohibit the free exercise of the trade of the said Modestos Pitsillos leader of the Justice Party of Ayios Pavlos”.

“2. Conspiracy to prevent or obstruct the free and lawful disposition of property contrary to section 373.”

The particulars of this offence were that “the accused between 15.11.83 and 25.11.83, both dates inclusive, conspired to prevent or obstruct the free and lawful exercise of the profession or trade at the time of the break of the pupils of Modestos Pitsillos of Ay. Pavlos”.

“3. Conspiracy to deprive free and. lawful exercise of the profession contrary to section 373(d) (e) of the Criminal Colt.”

The particulars of this offence were that “the accused during the period 15.11.83 - 25-11 .83 conspired and influenced the pupils of the school not to buy the goods of [*529] Mr. Modestos Pitsillos, leader of the Justice Party at the time of the break of 10.20 a.m. depriving the free and lawful exercise of his trade by their unlawful activities”.

“4. Conspiracy to challenge the commission of an assault or duel contrary to section 90 of the Criminal Code, Cap. 154.”

The particulars of this offence were that “the accused between 15.11 83-25.11 .83 by their unlawful and arbitrary act interfered with the free exercise of the profession and deprivation of the living of Mr. Modestos Pitsillos and challenged him to commit an assault or fight a duel against them”.

In support of his case the prosecutor gave evidence himself and, also, called four witnesses. In giving evidence, the prosecutor stated chat he is a hawker of icecream and cakes (“bombes”) and goes to various chools, including the Technical School of Lycavittos to sell these articles to purpils during the break. On the 15 November 1983, he went to Lycavittos Technical School to sell “Bomhes” and parked his motor-cycle at the back part of the school at the edge of the road. The school-boys and girls went towards him in order to buy but accused No.1 came and was sending them away telling them not to buy because the school has a canteen. Then there came accused

No.2 and did the same. Afterwards the police came and accused No.1 in his [*530] presence and in the presence of accused No.2 complained to

them that he is hiring the canteen and he is paying rent end hawkers go there and sell their goods. The police did not send them away and he used to go from

15.11.83 - 25.11.83 and the same thing happened whereupon he filed this prosecution. The stand of the accused made him angry to the extent of coming into grips with them and he controlled himself with difficulty.

In cross-examination he said that accused No.2 is the Assistant Headmaster of the School, that accused No.1 came near and was sending the children away on 15.11.83 and on the other days he used to do so from a distance.

P.W.2 Andreas Constantinou, a hawker of ice-cream, testified that on 15.11.83 he was at the above school with the prosecutor. At the break accused No.2 came out and was preventing the children from buying goods from them, (the witness and the prosecutor). Accused No.1 was also there but not near

them and was, also, telling the pupils not to buy. Accused No.2 used to come daily and when he was not coming he was

sending other pupils to prevent the intending buyers.

In cross-examination he said that he is under the protection of the prosecutor who is the leader of the Justice Party and he is himself a member of the party. On 15.11.83 there first came accused No.2 and was followed by accused No.1 and that ever since the 15.11.83 accused [*531] No.1 did not go there. He did not hear what the accused were telling the children but they were preventing them. When put to him that on

15.11.83 accused No.1 did not say anything to the pupils, he said “I did not hear what he said but when he came he was preventing them”; and to a question how was he preventing them he replied he was telling them “we also have a canteen you should go to buy from your canteen”.

P.W.3 Loukas Loumakos, also a hawker of ice-cream, testified that on 15.11.83 accused No.2 was passing angry 1 remarks (“ethimone”) to the children who were intending to buy “bombes”, telling them to buy from the canteen. Accused No.1 was there as well doing the same but only on 15.11.83. He has not seen accused No.1 there since 15.11. even from a distance though he (the witness) went there on 2 - 3 occasions.

P.W.4 Georghios Leonida Montis, an ice-cream hawker, testified that on 15.11.83 he happened to pass by chance, from the above school and he noticed accused No.2 in the school yard telling something to the students but he does 2 not know what he was telling them. He did not see accused No.1 on 15.11.83, From 15.11.83 -25.11.83 children used to come there but not very near because they were afraid of accused No.2. He did not, however, hear him telling them not to buy. [*532]

P.W.5 Charalambos Evmeniou, the officer in charge of the Registry of the Ministry of Education, produced three letters. Exhibit No.1 was a letter dated 31.1.1975 from the Ministry to the Prosecutor’s counsel which was to the effect that the schools may prohibit hawkers from entering the schoolyard in order to sell their goods to the pupils and can also prohibit the pupils from getting out of the school premises but they cannot punish them for buying from hawkers. Exhibit No.2 was a letter dated. 9.5.74 from the Ministry to the Prosecutor and was to the same effect as exhibit 1. To the same effect was a letter dated 26 April, 1969 from the Ministry to the Prosecutor – A for identification.

At the end of the case of the prosecution learned, counsel appearing for the accused submitted that the prosecutor has not made out a prima facie case against them sufficiently to require them to make their defence on the ground that on the basis of the evidence adduced even if true the essential ingredients of the offences charged

- conspiracy - have not been prima facie proved. He also submitted that the charge was defective in that section 373 does not provide for the offence of public injury, which is the subject-matter of count No.1, and that the particulars of the alleged offence have nothing to do with it. Further, whereas count 2 in the statement [*533] of offence charged accused of the offence of “conspiring to prevent or obstruct the free and lawful disposition of property contrary to section 373” its particulars were that “they conspired to prevent or obstruct the free and lawful exercise of a trade”…

The law regarding prima facie case is summed up in “Criminal Procedure in Cyprus” by A.N Loizou and G.M.Pikis at pp.111 -113 in which the following are, inter alia, stated at pp.112-113:

“In 1962, the Divisional Court of the Queen’s Bench Division of the High Court of England issued a Practice. Note by way of direction to Justices designed to guide them in determining whether a prima facie case has been made out. This direction, though not binding on Cyprus Courts, forms in practice an important guide and is often followed by Courts in Cyprus because it does incorporate the fundamental principles that the Court should have in mind in coming to a decision on the matter. The practice Note provides:

‘…without attempting to lay down any principle of law, - as a matter of practice justices should be guided by the following considerations: [*534] Submission of no case may properly be upheld –

(a) when there has been no evidence to prove an essential element in the alleged offence;

(b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination, or is so manifestly unreliable, that no reasonable tribunal should safely convict on it.’

“ The decision to uphold or reject the submission should not depend upon whether the adjudicating tribunal (if compelled to do so) would at this.stage convict or acquit, but upon whether the evidence is such that a reasonable tribunal.might convict.”

Reference should, also, be made to the judgment of the Court of.Appeal, given by Hadjianastassiou, J., in Azinas and Another v. Police, (1981 ) 2 C.L.R. 9 at pp.52-57 and to the English authorities referred to therein.

As it appears from the counts which have been cited verbatim hereinabove, all of them charge the accused with conspiracy either in the statement of offence or in the particulars thereof. Now what are the ingredients of the offence of conspiracy? [*535]

In Archbold Pleading, Evidence and Practice 39th ed. the following are states: “Conspiracy is an indictable offence, consisting in the agreement of two or more persons to do an unlawful act by unlawful means.…The offence cannot exist without the consent of two or more persons”.(Sec para. 4051). “Conspiracy involves the element of “mens rea, in that the prosecution must prove not only an agreement between the alleged conspirators to carry out an “unlawful purpose, as signified by words or other means of communication between them, but also an intention in the mind of any alleged conspirator to carry out the unlawful purpose.…before a person can be convicted of conspiracy to commit an offence, he must at least know the essential matters which constitute that offence. Mens rea is an essential element in conspiracy only in so far that there 15 must be an intention to be a party to an agreement to do an unlawful act.” (See para.4051c). “It is not necessary in order to constitute a conspiracy, that the acts agreed to be done should be acts which if done would be criminal. It is enough if the acts agreed to he done, although not criminal are wrongful, i.e. amount to a civil wrong”. (See para, 4065).

In the “Textbook of Criminal Law” by Glanville Williams the following are stated at pp.351-352: “Any agreement manifested by words or conduct to commit the wrong constitutes a conspiracy. The overt acts in a [*536] conspiracy may be acts signifying agreement, acts preparatory to offences, or the offences themselves”. In Russel on Crime, 12th ed. the following are stated at pp.202-203:

“The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties, Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough. The external or overt act of the crime in concert by which mutual consent to a common purpose is exchanged. In an indictment, it suffices if the combination exists and is unlawful, because it is the combination itself which is mischievous, and which is considered to give the public an interest to interfere by indictment”.

In the leading case of Crofter v. Veitch (1935) A.C. 435 it was held that the predominant purpose of the combination was the legitimate promotion of the interests of the persons combining, and since the means employed were neither criminal nor tortious in themselves, the combination was not unlawful. Viscount Simon L.C. is quoted to have said at p. 439: [*537]

“Conspiracy, when regarded as a crime, is the agreement of two or more persons to effect any unlawful purpose, whether as their ultimate aim, or only as a means to it, and the crime is complete if there is such agreement, even though nothing is done in pursuance of it. She crime consists in the agreement, though in most cases overt acts done in pursuance of the combination are available to prove the fact of agreement”.

In Sorrell v. Smith, (1925) A.C.700 the following principle was formulated:

“ If the real purpose of the combination is, not to injure another, but to guard or defend the trade of those who enter into it, then no wrong is committed and no action will lie, although damage to another ensues”.

As to the content ions of learned counsel for accused concerning counts 1 and 2 in the “Criminal Procedure in Cyprus” (supra) at 0.83 the following are stated:

“Any objection to a formal defect appearing on the face of the charge or information must be raised before the accused pleads to the charge and not later. If the accused refrains from raising such an objection, the accused will be precluded from taking the point later, and will [*538] be deemed to have waived the objection. The defect, however, must be of. a formal nature; if the defect goes to the root of the charge, for instance, where a count is bad for duplicity , the accused will be free to take objection to the charge at any stage of the proceedings.”

In view of the contents of counts 1 and 2 I am of the opinion that the objection is not of a formal nature but goes to the root of the charge and I will deal with it at this stage. Also, even if no objection to the charge had been taken my decision to call upon the accused or to acquit or convict them must be in accordance with the charge so that it can be seen on what charges he has been called upon or acquitted or convicted and that, therefore, it is deemed proper for this issue to be decided at this stage.

Now, as already stated by means of count 1 accused are charged of the offence “public injury contrary to section 373” of Cap. 154. Having carefully gone through section 373 I have been unable to trace a provision in respect of the offence charged; and as it is an elementary principle that no one can be charged of an offence which is unknown to the statute count No.1 is hereby quashed (see also, Article 12.1 of the Constitution which provides that “No person shall be held guilty of any offence on account of any act or omission which did not constitute an offence under the law at the time when it was committed”.). [*539]

Regarding count 2 in the statement of offence accused are charged of “conspiracy to prevent

or obstruct the free and lawful disposition of property” but in the particulars of offence they are charged of conspiracy “to prevent or obstruct the free and lawful exercise of a

trade.…”.In “Criminal Procedure” (supra) the following are stated at p.47:

“The charge must contain sufficient particulars to enable the accused to know with reasonable certainty the case he has to meet at the trial… The requirement to afford, before trial to an “accused person sufficient information about the offence with which he is charged, is now embodied In Article 12.2 of the Constitution and forms part of the fundamental rights of the accused. It imposes a duty to state all the essential details of the offence.… The particulars in each count must give the accused sufficient notice of what the prosecution intends to prove on each count.… Whether the particulars contained in the charge give adequate information to apprise the accused of the case he has to “meet and prepare his defence is a question of fact and degree.”

In the instant case, it should be noted, the alleged offence is that provided by section 373(c) whereas [*540] the particulars refer more or less to an offence covered by section 373(e) Therefore, it can be safely concluded that no particulars of the offence charged are contained in count 2, a state of affairs which leads me to the inescapable conclusion that accused may be misled and be prejudiced in his defence (see proviso to section 39 of Cap. 155). Therefore, count 2 will, also, be quashed for absence of particulars. This is not a case in which the defect could be remedied had accused applied for and been supplied with particulars (See Attorney-General v. HjiConstanti (1969) 2 C.L.R. 5) for the defect is so serious that renders the charge non-existent and defective.

I will now proceed to consider whether the prosecution has prima facie proved counts 3 and 4.

It is quite clear and. I so hold that there has been adduced no evidence at all to prove the ingedient of “agreement” between the two accused, and I will hereinafter consider whether there is evidence of “overt acts done in pursuance of the combination” (see the aforequoted passage in the Crofter case supra) in order to prove the fact of agreement.

As it will be seen from the summary of the evidence adduced by the prosecution hereinabove the evidence of the prosecutor presents both accused - accused No.1 first and then accused No.2 - as having gone near him on 1 5.11.83 [*541] and. continued doing so every day until 25.11.83. In cross-examination, however, accused. No.1 is presented as preventing the children from buying from the prosecutor, from a distance, on the days after the 15.11.83. P.W.2 presents accused No.2 as going near the hawkers and accused No.1 at a distance. In cross-examination he says - contrary to what the prosecutor said - that accused No.2 went there first and was followed by accused No.1 and that ever since 15.11.83 accused No.1 did not go near them. At one stage he says that he did not hear what the accused were telling the children and at another stage - in cross-examination - he says that accused No.1 was telling them “we also have a canteen you should go to buy from your canteen”. The evidence of P.W.3 does not present accused No.1 near the hawkers after 15.11.83 even from a distance. Lastly, P.W.4 has not seen accused No.1 near the hawkers on 15.11.83.

Having considered the evidence adduced by the prosecutor I am of the opinion that it does not contain any overt acts in order to prove the fact of agreement. I, therefore, hold that the ingredient of agreement which is essential for the count of conspiracy is lacking. Accordingly I am bound to conclude that no prima facie case has been made out against accused regarding counts 3 and 4 because there has been no evidence to prove an essential element - agreement - of the alleged offence. [*542]

Further I am of opinion and so hold that in view of the above contradictions between the evidence of the prosecution witnesses - who it should be noted were all eyewitnesses - and between their evidence in chief and in cross-examination, the evidence adduced “has been discredited as a result of cross-examination and is so manifestly unreliable, that no reasonable tribunal should safely convict on it”. Accordingly the submission of accused will be upheld on this ground as well.

Further, I would add that even if my

conclusion about absence of overt acts were to be held that it is wrong we have it in evidence that the real purpose of the combination - if any - was not to injure the prosecutor but to forward or defend the financial interests of accused No.1. Therefore, on the authority of Sorrell. v.Smith (supra), and Crofter v. Veitch (supra) the offence of conspiracy has not been committed and the submission of no case succeeds on this ground as well. Also regarding count 3 though in the statement of offence it purports to be based on section 373(d)

(e) both the statement of offence and its particulars, though not happily worded, are relating to section 373(e). Now this section requires that the conspiracy to “prevent or obstruct” must be “by any means of any act or acts which if done by any individual person would constitute an offence on his part”. [*543]

In this case, however, the alleged acts of the accused do not constitute an offence; accordingly the submission of no case regarding count 3 is upheld on this ground too.

I would, also, place on record my

conclusion on counts 1 and 2 assuming that they have not been quashed and should

it be held on appeal that they were wrongly quashed. As these two counts are, also, conspiracy counts, the submission of no case

will be upheld in respect of these counts as well for the reasons I have given in respect of counts 3 and 4.

For all the above reasons, the prosecution has not made out a case against the accused sufficiently to require them to make their defence on any of the counts and, therefore, the accused are not called upon to make their defence and are acquitted and discharged accordingly.

In conclusion I would add that the prosecution who chose to conduct the proceedings in person, made a valiant effort to rest his case on his right to exercise his trade or profession. Much as I respect this right of the accused unfortunately for him it appears that the procedure and means he has chosen for vindicating it are not the proper ones.

Accused acquitted and discharged.